COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68209 JOHN CAVALERI : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RHONDA CAVALERI, nka Rhonda : Hartman : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION JULY 6, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-210107 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS JUDGE, ESQ. BRENT L. ENGLISH, ESQ. 6100 Rockside Road 795 Courthouse Square Suite 240 310 Lakeside Avenue Independence, Ohio 44131 Cleveland, Ohio 44113-1021 For Guardian Ad Litem: TYRONE C. FAZIO, ESQ. 55 Public Square 2200 Illuminating Bldg. Cleveland, Ohio 44113 - 3 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Defendant-appellant Rhonda Cavaleri, nka Rhonda Hartman, appeals from contempt findings and an award of attorney fees to her ex- husband, plaintiff-appellee John Cavaleri, aka John Frepane, arising out of proceedings in the Domestic Relations Court. Defendant contends that the contempt findings that she interfered with the visitation rights of her ex-husband and attorney fees award dependent thereon are without sufficient evidentiary support. We find no error in the proceedings below and affirm. The parties were divorced on October 15, 1991 after approximately four years of marriage. They have a daughter, Brittany Cavaleri, who is now six years old. The defendant wife was given custody of the child. The present dispute arises primarily out of the husband's complaints about the wife's failure to cooperate in making visitation available to the husband at the times appointed by the court. The contempt orders arose out of two motions to show cause why the wife should not be held in contempt for failing to permit visitation on November 25 and 28, 1992, June 28, 1993 and on September 26, 1993. The husband sought attorney fees for each motion. The husband's motion to change custody from the wife to him were also filed. The wife moved for increased support. - 4 - Eleven motions were consolidated and came on for hearing before the trial referee on February 28, 1994 after notice to all interested parties. Defendant was not present because she overslept and only came in at the end of the hearing. Both the Guardian Ad Litem, the husband, and his attorney testified at the hearing. The substance of their evidence was that defendant did not cooperate with the visitation schedule and failed to produce the child at the places and at the times previously agreed to and ordered by the court. The referee found these allegations well- taken and recommended that defendant be held in contempt for her failures, and that plaintiff recover his attorney fees. The referee also recommended that the husband's motion for a change of custody and the wife's motion for modification of support be denied. The only issues raised on this appeal are the contempt findings and the related attorney fees. The wife filed objections to the referee's report. The trial court overruled the objections to the contempt recommendations, found defendant was in contempt and awarded $1,326.56 in attorney fees to the husband for prosecuting the contempt proceedings. On the referee's recommendation, the court ordered: The Defendant is sentenced to serve thirty days in jail for her contempt of this Court for failure to comply with its orders regarding visitation. This sentence is suspended on the condition that she perform not less than 20 hours per month of community service for 12 consecutive months or until further order of the Court, and upon her filing with the Court and mailing to Mr. Frepane by certified mail a list of three (3) possible supervisors for his visitation with their daughter, - 5 - and a proposed schedule of visitation which provides Mr. Frepane at least three hours per week of uninterrupted access to her. Sentence has been stayed pending appeal. A timely notice of appeal has been filed. The defendant's two assignments of error will be considered in the order presented. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT APPROVED THE REFEREE'S REPORT AND RECOMMENDATION AND FOUND APPELLANT GUILTY OF CONTEMPT WHEN THAT FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant contends that the evidence was not sufficient to support the findings of contempt for interference with the plaintiff's visitation rights. We disagree. R.C. 2705.031(B)(2) expressly authorizes contempt proceedings for interference with visitation rights. "Any person who is granted visitation rights under a visitation order or decree *** may initiate a contempt action for a failure to comply with, or an interference with, the order or decree." Defendant maintains that the trial court found her guilty of criminal contempt not civil contempt and the evidence did not support a finding of criminal contempt. The differences between civil and criminal contempt were recently described in Morford v. Morford (1993), 85 Ohio App.3d 50, 54: We begin by noting that there is a difference between civil contempt and criminal contempt. Civil contempt is where the sanction is imposed to coerce the contemnor to comply with the court's - 6 - order, and is established by using the clear and convincing evidence standard. Con-Tex, Inc. v. Consolidated Technologies, Inc. (1988), 40 Ohio App.3d 94, 531 N.E.2d 1353. Criminal contempt is where the court imposes a sanction as punishment for a past failure, Schrader v. Huff (1983), 8 Ohio App.3d 111, 8 OBR 146, 456 N.E.2d 587, and, thus, the contemnor is entitled to all the rights afforded to a criminal defendant. In many cases, it is difficult to characterize the contempt as either civil or criminal because of overlapping considerations. For example, in this case, the sanction might be construed as an attempt to get appellant to pay his child support or a punishment by a court which was fed up with appellant's failure to pay support as ordered. We decline to characterize the contempt in this case because the characterization will have no bearing on the outcome of our decision. We find that the evidence herein was sufficient to support the finding of contemptuous interference with the court's visitation orders, whether the burden of proof was beyond a reasonable doubt or by clear and convincing evidence. The affidavits filed by plaintiff in support of his motion to show cause established that defendant "failed to deliver said minor child to the North Olmsted Police Station for Plaintiff's rightful visitation on Wednesday, November 25, 1992 and again on Saturday, November 28, 1992" pursuant to the court's order for periodic visitation dated October 22, 1992. There was also evidence from the Guardian Ad Litem and the plaintiff that he was deprived of his visitation rights with his daughter since November 25, 1992. Although defendant came late to the hearing and was permitted by the referee to give testimony or dispute these contentions, she failed to do so. On the contrary, she acknowledged that the - 7 - visitations did not take place and offered that "there is [sic] a lot of reasons behind the fact that I not allowed this visitation." (Tr. 64). Thus, there was ample evidence to support the referee's express finding that "Ms. Hartman has violated every visitation order that this Court has established, and that she acknowledged as much at the hearing of these motions. *** that she has continuously and willfully denied the plaintiff his right to visitation in accordance with this Court's orders and therefore falls squarely under Ohio Revised Code Section 3109.04(F)(1)(i)." (Ref. Rept., Apr. 22, 1994 at 5). The trial court overruled the defendant's objections to the report on the specifics at issue, and, as modified, adopted the referee's recommendations. Contempt is a proper remedy in cases dealing with failure to comply with court ordered visitation. Davis v. Davis (1988), 55 Ohio App.3d 196; see, also, Winkler v. Winkler (1991), 81 Ohio App.3d 199, 202. In reviewing the judgment of the trial court, we do not reweigh the evidence. Deference must be shown to the trial court's judgment and the findings of fact on which it rests. In re Crisafi (June 8, 1995), Cuyahoga App. No. 68210, unreported. Our only determination is whether the trial court's finding of contempt amounted to an abuse of discretion. State ex rel. Venrone v. Birkel (1981), 65 Ohio St.2d 10, 11; Dickard v. Rigenbach (Aug. 18, 1994), Cuyahoga App. No. 66136, unreported; Yasher v. Yasher (March 24, 1994), Cuyahoga App. No. 65545, unreported. - 8 - On the strength of this record, we cannot conclude that the finding of contempt was against the manifest weight of the evidence or an abuse of discretion. The finding was overwhelmingly supported by the evidence including the defendant's admissions. Assignment of Error I is overruled. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY APPROVING THE REFEREE'S REPORT AND RECOMMENDATION TO THE EXTENT THAT A MONEY JUDGMENT WAS RENDERED AGAINST THE APPELLANT FOR $1,350.00 FOR ATTORNEY'S FEES PURPORTEDLY INCURRED BY THE APPELLEE IN RELATION TO APPELLANT'S ALLEGED CONTEMPT. The referee found that plaintiff had incurred "a total expense of $5,137.50 for attorney fees as a result of this action based on 41.10 hours at a billing rate of $125.00 per hour." (Ref. Rept. at p. 7). These expenses included matters outside the contempt proceedings. The referee recommended that defendant reimburse plaintiff $2,500 for efforts to obtain his visitation rights. The trial court reduced this to $1,326.56 as the final award. Although defendant concedes the court may award reasonable attorney fees to enforce a court order, she claims this award is not supported by the evidence. The decision to award attorney fees and the amount thereof is within the sound discretion of the trial court. Blum v. Blum (1967), 9 Ohio St.2d 92; Ingalls v. Ingalls (1993), 88 Ohio App.3d 570, 579; Saro v. Saro (March 30, 1995), Cuyahoga App. No. 67308, unreported. We find the award appropriate and supported by the evidence. McCoy v. McCoy (1993), 91 Ohio App.3d 570, 584. As stated in Fry v. Fry (1989), 64 Ohio App.3d 519, 523: - 9 - The Supreme Court of Ohio in State, ex. rel. Fraternal Order of Police v. Dayton (1977), 49 Ohio St.2d 219, 230, 3 O.O.3d 360, 366, 361 N.E.2d 428, 436, held that a trial court has discretion to include reasonable attorney fees as a part of the costs taxable to one found guilty of contempt. Having reviewed the record in this case, and particularly the judgment entry of March 16, 1989, we find nothing that would lead us to conclude that the trial court abused its discretion in awarding attorney fees to the defendant. We think the record herein is also sufficient to support the award. There is no question that defendant's defiance of the court's visitation orders, to which she had personally agreed, necessitated motions to show cause, a hearing thereon, and unnecessary legal expenses to compel compliance. The fees were supported by testimony and exhibits in the record. The court reduced the claimed fees substantially to correspond to the contempt efforts and attempted a fair apportionment of the effort to the contempt issues at hand. The trial court's award of attorney fees did not rise to the level of an abuse of discretion. Blackmore v. Blackmore (1983), 5 Ohio St.3d 217, 219. We will not substitute our judgment for that of the trial court absent a showing of an abuse of discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131. We find no abuse of discretion in the method or result. Assignment of Error II is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the Court and time period for review will begin to run. .